Nyansiana & 7 Others v Buyungo (Miscellaneous Application 158 of 2021) [2023] UGHC 322 (9 February 2023)

Full Case Text

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT MASAKA **MISCELLANEOUS APPLICATION NO. 158 OF 2021** (ARISING FROM CIVIL SUIT NO. 001 OF 2012)

- 1. NYANSIANA TALIDDA SERWADDA - 2. EMMANUEL LWANGA - 3. LEONARD KISUULE - 4. BERNA GUTTABINGI - 5. MARIA WEBUZAWAAKI - 6. JOSEPH MAYOBA - 7. WASSWA PETER - 8. STEVEN KALEMA ....................................

# **VERSUS**

BUYUNGO SAMUEL ....................................

#### RULING

Hon. Lady Justice Victoria N. N. Katamba

### BACKGROUND

The Respondent sued the Applicants successfully for a declaration that he is the rightful owner of land comprised in Buddu Block 369 Plot 494 among other reliefs. The Respondents were dissatisfied with the Judgment and orders of the Late Hon. Mr. Justice V. F Musoke Kibuuka as he then was and appealed to the Court of Appeal of Uganda. The Court of Appeal found no merit in the Applicants appeal and dismissed it. The Applicants were still dissatisfied with the orders of the Court of Appeal and have since appealed to the Supreme Court. The Respondents through their Advocate appeared before this court on 20th May 2022 and informed court of the existence of imminent threat of execution. This court graciously granted an oral application for interim stay of execution pending determination of the main application for stay of execution inter parties. The Applicants were directed to serve the main application for stay of execution on the Respondent and file a return of service. Further directives were given for both parties to file a reply, rejoinder

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and submissions. The court then retired to deliver its Ruling in the main application for stay of execution. Unfortunately, through a clerical error, the interim order was written erroneously as to purport to remain in force pending determination of the Applicants' appeal in the Supreme court instead of pending determination of the main application of stay of execution, inter parties.

#### Representation

The Applicant was represented by M/s Nyanzi, Kiboneka & Mbabazi Advocates

The Respondent neither filed an affidavit in reply nor submissions.

# APPLICANT'S SUBMISSIONS

The Applicants submitted that their application is brought under Section 33 of the Judicature Act which enjoins this court to grant absolutely or on such terms and conditions it deems appropriate remedies to ensure that all matters in controversy between the parties are settled in finality.

The Applicant also submitted that Order 22 rule 23 of the CPR empowers this court stay execution of Decrees upon sufficient cause being shown.

The Applicant rightly submitted that the Application for stay of execution must disclose that;

- There is a pending appeal - There is an eminent threat of execution - That the Applicant will suffer substantial loss if the order for stay of execution is not made. - That the application has sufficient cause or has been made without unreasonable delay - That security for due performance of the Decree has been made.

In answering the above conditions, the Applicants submitted that their affidavit in support of the application discloses that they have filed and served a notice of appeal and a letter requesting for the record of the court of appeal.

The Applicants further submitted that their affidavit demonstrates that there is a serious threat of execution because the certificate of title to the suit land has already been handed over to court to enable execution. That the suit land is home to the some of the Applicants who stand to suffer substantial loss. That the affidavit further demonstrates sufficient cause and that the requirement to deposit security for due performance of the Decree is not mandatory and is not appropriate to the circumstances of this suit.

In conclusion, the Applicants prayed that the Application be allowed and execution be stayed pending determination of their appeal in the Supreme court.

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# DETERMINATION BY COURT.

ISSUE: Whether this Application for stay of execution may be determined?

To begin with, in the background I noted an error that was made in the Order of interim stay of execution purporting to remain in force pending determination of the Applicant's appeal in the Supreme Court. This court is empowered under S.99 of the Civil Procedure Act to correct clerical and arithmetical errors in its Judgments and Rulings.

The court hereby moves itself to recall the ex parte interim order that was issued in error. As clearly discernable from the ruling of the court, the order was intended to offer an interim relief to the Applicants pending hearing and determination inter parties of this main application for stay of execution. This is further demonstrated by this court's stern directives to the Applicants to serve this main application on the Respondent in the same Ruling.

As regards to the merits of this Application, I have carefully perused the file and found no return of service of this Application. This explains why the Respondent has not filed an affidavit in reply either.

Article 28 of the Constitution of Uganda 1995 and the rules of natural Justice dictate that a person against whom a suit has been brought has to be notified of the suit. The rationale for this is to enable the person sued to reply to the claim against him and afford him a hearing.

It cannot be disputed that the Respondent stands to be affected by any orders that may be made against him under this application. Determining the instant Application in the current state of affairs would amount to condemning the Respondent unheard.

In the circumstances, the court is constrained to disallow the application. The issue is answered in the negative and the Application is hereby dismissed with no order as to costs.

I so order.

Orders:

1. The Ex parte Interim Order made on the 20th May 2022 against the Respondent is recalled/vacated.

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2. This main Application for stay of execution is dismissed with no order as to costs for want of service.

Dated and delivered electronically this 9th day of February, 2023

HON. LADY JUSTICE VICTORIA NAKINTU NKWANGA KATAMBA